Citation NR: 9739895
Decision Date: 11/07/97 Archive Date: 12/03/97
DOCKET NO. 96-04 735 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for vascular headaches.
2. Entitlement to service connection for a hiatal hernia.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Theresa M. Catino, Associate Counsel
INTRODUCTION
The veteran served on active military duty from September
1979 to November 1992.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that the regional office
(RO) committed error in denying the claims of entitlement to
service connection for vascular headaches and a hiatal
hernia. He asserts that he began experiencing headaches as
well as gastrointestinal problems during his active military
duty and that, after his separation from service, the
diagnoses of vascular headaches and a hiatal hernia were
made.
DECISION OF THE BOARD
The Board of Veterans’ Appeals (Board), in accordance with
the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp.
1997), has reviewed and considered all of the evidence and
material of record in the veteran's claims file. Based on
its review of the relevant evidence in this matter, and for
the following reasons and bases, it is the decision of the
Board that the preponderance of the evidence is against the
claims of entitlement to service connection for vascular
headaches and a hiatal hernia.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's claims has been obtained insofar
as possible.
2. Vascular headaches were not shown in service, were first
demonstrated several years after service, and are unrelated
to service.
3. A hiatal hernia was not shown in service, was first
demonstrated several years after service, and is unrelated to
service.
CONCLUSION OF LAW
Vascular headaches and a hiatal hernia were not incurred in
or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107
(West 1991 & Supp. 1996); 38 C.F.R. § 3.303 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran’s claims for service connection for vascular
headaches and a hiatal hernia are well-grounded within the
meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the
Board finds that the veteran has presented claims which are
plausible. The Board is also satisfied that all relevant
facts have been properly developed. There is no indication
of any outstanding pertinent records that could be obtained.
As sufficient data exist to address the merits of these
claims, the Board concludes that the VA has adequately
fulfilled its statutory duty to assist the veteran in the
development of them. Consequently, no further assistance to
the veteran is required to comply with the duty to assist
mandated by 38 U.S.C.A. § 5107(a). Murphy v. Derwinski,
1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90
(1990).
The applicable laws and regulations clearly state that
service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991);
38 C.F.R. § 3.303(d) (1996). Furthermore, the regulations
provide that, for the showing of a chronic disease in
service, there is required a combination of manifestations
sufficient to identify the disease entity and sufficient
observation to establish chronicity at the time, as
distinguished from merely isolated findings or a diagnosis
including the word “chronic.” Continuity of symptomatology
is required only where the condition noted during service (or
in the presumptive period) is not, in fact, shown to be
chronic or where the diagnosis of chronicity may be
legitimately questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b) (1996).
A. Vascular Headaches
The service medical records in the present case fail to
demonstrate any evidence of complaints of, treatment for, or
findings of vascular headaches. According to the
post-service medical records, the veteran received treatment
for headaches between September 1994 and June 1995. An
examiner noted on the report of a February 1996 VA esophagus
examination that the veteran had been scheduled for magnetic
resonance imaging of his brain in reference to his headaches.
However, the veteran failed to report for this testing and
indicated that he was unavailable for rescheduling. At a VA
miscellaneous neurological examination in March 1996, the
veteran reported that he began experiencing generalized
headaches throughout his skull when he was stationed in Saudi
Arabia. In addition, the veteran stated that he had been
examined by military physicians who diagnosed vascular-type
headaches. At the post-service examination, the examiner
diagnosed vascular-type headaches with recurrent acute
exacerbations.
The Board notes that the veteran reported at the March 1996
VA neurological examination as well as at the personal
hearing conducted before a Member of the Board at the RO in
May 1997 that he had experienced headaches during his active
military duty (see hearing transcript (T.) at 6) and that
military physicians had diagnosed vascular-type headaches.
Importantly, however, the fact remains that the service
medical records are negative for complaints of, treatment
for, or findings of such a disorder.
Significantly, the claims folder contains no evidence of
continuity of symptomatology between the post-service
treatment and diagnosis of vascular-type headaches and the
veteran’s active military duty. The first evidence of a
headache disorder is dated in September 1994, approximately
two years after the veteran’s separation from service.
Clearly, the record does not support the finding of
continuity of symptomatology since the veteran’s service.
The required “evidentiary showing of continuity” is not
present. See 38 C.F.R. § 3.303(b) (1996).
Moreover, the post-service medical reports do not relate the
veteran’s recent diagnosis of vascular headaches to his
active military duty, and the veteran himself is not
competent to do so. Without such evidence, service
connection for vascular headaches must be denied. 38 C.F.R.
§ 3.303(b) (1996).
B. Hiatal Hernia
The veteran testified at the May 1997 personal hearing that
he started having gastrointestinal problems, including a
burning sensation in his stomach as well as “real, real bad
heartburn,” in July 1992. T. at 5-6. According to the
service medical records, the veteran was treated in June 1985
for complaints of nausea, vomiting, and diarrhea lasting one
day. Antacid medication was prescribed, and the veteran was
instructed to return in three days if his symptoms worsened.
The remainder of the service medical records are negative for
complaints of, treatment for, or findings of, a hiatal
hernia.
According to the post-service medical reports, the veteran
received treatment for a sliding hiatal hernia in September
1994. Specifically, an upper gastrointestinal series
demonstrated a small sliding hiatus hernia but no evidence of
gastroesophageal reflux or esophagitis. X-rays taken of the
veteran’s abdomen showed no significant intra-abdominal
abnormalities. When the veteran sought follow-up treatment
for his hiatal hernia in February 1995, he reported that the
medication which had been prescribed, Zantac, did not
alleviate his symptoms.
At the February 1996 VA esophagus examination, the veteran
reported that, despite treatment (including a prescription
for Zantac), he continued to experience daily episodes of
epigastric abdominal pain and pyrosis. Examination
demonstrated mild pain to palpation of the epigastric area of
the abdomen, no organomegaly, no masses, and bowel sounds
which were normal to auscultation. The examiner diagnosed a
symptomatic transitory small sliding hiatal hernia under
treatment. The upper gastrointestinal series completed at
that time was normal.
Significantly, the claims folder contains no evidence of
continuity of symptomatology between the in-service episode
of nausea, vomiting, and diarrhea in June 1985 and the
post-service diagnosis of a sliding hiatal hernia. With
approximately 9 years between the in-service episode of
nausea, vomiting, and diarrhea and the diagnosis in September
1994, the record clearly does not support the finding of
continuity of symptomatology since the in-service occurrence.
The required “evidentiary showing of continuity” is not
present. See 38 C.F.R. § 3.303(b) (1996).
Moreover, the post-service medical reports do not relate the
veteran’s recent diagnosis of a hiatal hernia to the
in-service episode of nausea, vomiting, and diarrhea, and the
veteran himself is not competent to do so. Without such
evidence, service connection for a hiatal hernia must be
denied. 38 C.F.R. § 3.303(b) (1996).
Consideration of 38 C.F.R. § 3.317 (1996).
The Board notes that the regulations provide for grants of
service connection for certain disabilities due to
undiagnosed illnesses involving veterans who served on active
military duty in the Persian Gulf War. Specifically, the
applicable regulation provides that, under certain
circumstances, service connection will be granted for
objective indications of a chronic disability resulting from
an illness or combination of illnesses manifested by one or
more signs or symptoms such as those listed in paragraph (b)
of this section, provided such disability became manifest
either during active military, naval, or air service in the
Southwest Asia theater of operations during the Persian Gulf
War, or to a degree of 10 percent or more not later than two
years after the date on which the veteran last performed
active military, naval, or air service in the Southwest Asia
theater of operations during the Persian Gulf War. 38 C.F.R.
§ 3.317(a)(1) (1996). Paragraph (b) of this section includes
headaches as well as gastrointestinal signs or symptoms.
38 C.F.R. § 3.317(b)(3), (10) (1996).
However, in order for service connection to be granted under
this regulatory provision, any objective manifestations
cannot be attributed, by history, physical examination, or
laboratory tests, to any known clinical diagnosis. 38 C.F.R.
§ 3.317(a)(1)(ii) (1996). Significantly, although the
veteran in the present case has complained of headaches and
gastrointestinal problems, the claims folder contains
competent evidence of pertinent diagnoses, including
vascular-type headaches and a hiatal hernia. Consequently,
service connection for vascular headaches and a hiatal hernia
cannot be awarded pursuant to the provisions of 38 C.F.R.
§ 3.317.
ORDER
Service connection for vascular headaches and a hiatal hernia
is denied.
MICHAEL A. PAPPAS
Acting Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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